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United States Court of Appeals, Tenth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Jason MCKINNEY, Defendant-Appellant.

No. 17-3125

Decided: February 16, 2018

Before MATHESON, KELLY, and MURPHY, Circuit Judges. James A. Brown, Office of the United States Attorney, District of Kansas, Topeka, KS, Carrie N. Capwell, Office of the United States Attorney, District of Kansas, Kansas City, KS, for Plaintiff-Appellee Jason McKinney, Pro Se


After examining the briefs and appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

On March 29, 2017, Appellant Jason McKinney filed a pro se pleading styled “Petition for Writ of Error Audita Querela.” McKinney sought a reduction in the 360-month sentence he received for violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), possession with intent to distribute fifty grams or more of crack cocaine. Relying on Amendment 790 to the United States Sentencing Guidelines, which clarified the “jointly undertaken criminal activity” analysis, see USSG § 1B1.3(a)(1)(B), McKinney argued the district court miscalculated the quantity of drugs for which he was responsible under USSG § 2D1.1. McKinney previously challenged his sentence by filing motions pursuant to 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c), both of which were denied.

The district court denied McKinney's motion, concluding audita querela relief was not available because other avenues of relief, namely 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c), are available to McKinney and those avenues are not inadequate or ineffective. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] writ of audita querela is not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.” (quotation omitted) ). On appeal, McKinney argues § 2255 is not an avenue for relief because the claim he seeks to raise is a non-constitutional claim based on a clarifying amendment to the Guidelines and such a claim cannot be raised in a § 2255 motion. This court has already considered, and rejected, this argument. United States v. Tinajero-Porras, 697 Fed.Appx. 609, 611 (10th Cir. 2017) (unpublished disposition).1 Although Tinajero-Porras is an unpublished disposition, its reasoning is persuasive and its conclusion was based on this court's opinion in Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (holding “§ 2255’s substantive and procedural barriers by themselves do not establish that § 2255 is inadequate or ineffective”).

The district court's order denying McKinney's petition for a writ of audita querela is affirmed.


1.   We may consider non-precedential, unpublished decisions for their persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).

Michael R. Murphy, Circuit Judge

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